John Roberts an unlikely champion of health law

Updated 1:29 pm, Wednesday, October 31, 2012

The Supreme Court has decided President Obama's health care law is constitutional, and has upheld the individual mandate. Jan Crawford reports.

Media: San Francisco Chronicle

The law crafted by President Obama to extend health insurance to more than 30 million Americans owes its survival to an unlikely champion - Chief Justice John Roberts, leader of the most conservative Supreme Court in decades.

The majority opinion Roberts issued Thursday seemed to endorse Republican critiques of the law: that Congress' power to regulate interstate commerce doesn't include authority to require individuals to buy insurance, and that states shouldn't be coerced to expand Medicaid programs for the poor.

But the bottom line was a 5-4 ruling to uphold the insurance mandate, and virtually all of the law, as an exercise of the constitutional power to impose taxes "for the general welfare."

The law that Obama signed in March 2010 requires the uninsured to buy private coverage, with the help of federal subsidies for those of low or moderate incomes, or pay a penalty on their tax bills, starting at $95 a year in 2014. The measure doesn't describe the penalty as a tax, and Obama himself, accused by conservatives of imposing new tax burdens, disavowed any intention of raising taxes.

Photo: David Goldman, Associated Press

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Supporters of President Obama's health care law celebrate outside the Supreme Court in Washington on Thursday.

Supporters of President Obama's health care law celebrate outside the Supreme Court in Washington on Thursday.

Photo: David Goldman, Associated Press

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Claire McAndrew of Washington, left, and Donny Kirsch of Washington celebrate outside the Supreme Court in Washington, Thursday after a the court's ruling on health care.

Claire McAndrew of Washington, left, and Donny Kirsch of Washington celebrate outside the Supreme Court in Washington, Thursday after a the court's ruling on health care.

Photo: Evan Vucci, Associated Press

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House Minority Leader Nancy Pelosi relays the breaking news to her staff that the Supreme Court had just upheld the Affordable Care Act,Thursday on Capitol Hill in Washington. Pelosi, the former speaker of the House, was instrumental in helping to pass health care reform in Congress and was at President Obama's side when he signed it into law. At right, Pelosi gives credit to Wendell Primus, a senior policy adviser.

House Minority Leader Nancy Pelosi relays the breaking news to her staff that the Supreme Court had just upheld the Affordable Care Act,Thursday on Capitol Hill in Washington. Pelosi, the former speaker of the

Del. Richard L. Anderson, R-Prince William reacts to the news that the Supreme Court upheld the Obama healthcare reform law from Megyn Kelly, America Live anchor on the Fox News channel, as he watches in the Virginia State Capitol in Richmond, Va. Thursday, June 28, 2012. (AP Photo/Richmond Times-Dispatch, Bob Brown). less

Del. Richard L. Anderson, R-Prince William reacts to the news that the Supreme Court upheld the Obama healthcare reform law from Megyn Kelly, America Live anchor on the Fox News channel, as he watches in the ... more

Photo: Bob Brown, Associated Press

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President Barack Obama speaks in the East Room of the White House in Washington, Thursday, June 28, 2012, after the Supreme Court ruled on his health care legislation.

President Barack Obama speaks in the East Room of the White House in Washington, Thursday, June 28, 2012, after the Supreme Court ruled on his health care legislation.

Supreme Court Chief Justice John G. Roberts, the conservative-leaning leader of the court appointed by former US President George W. Bush, was the key swing vote in the June 28, 2012 decision by the Supreme Court to uphold President Barack Obama's health care reforms to insure another 32 million Americans, in a major victory for the president in the heat of a tight re-election contest.

Supreme Court Chief Justice John G. Roberts, the conservative-leaning leader of the court appointed by former US President George W. Bush, was the key swing vote in the June 28, 2012 decision by the Supreme

Journalists run out of the Supreme Court building after receiving the court's decision on the Affordable Care Act in Washington, D.C., U.S., on Thursday, June 28, 2012. The U.S. Supreme Court upheld the core of President Barack Obama's health-care overhaul, giving him an election-year triumph and preserving most of a law that would expand insurance to millions of people and transform an industry that makes up 18 percent of the nation's economy. Photographer: Andrew Harrer/Bloomberg less

Journalists run out of the Supreme Court building after receiving the court's decision on the Affordable Care Act in Washington, D.C., U.S., on Thursday, June 28, 2012. The U.S. Supreme Court upheld the core of ... more

Photo: Andrew Harrer, Bloomberg

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This television frame grab shows CNN broadcasting the Supreme Court's decision on President Barack Obama's health care law on Thursday. Both CNN and Fox News Channel incorrectly reported Thursday that the law's central provision, requiring virtually all Americans to have health insurance, had been struck down. Both networks backtracked when it became clear that the court upheld the provision. Broadcast networks broke into regular programming to deliver special reports and generally got it right. To get the news out quickly, competitive news organizations had to wade through pages of legal writing.

This television frame grab shows CNN broadcasting the Supreme Court's decision on President Barack Obama's health care law on Thursday. Both CNN and Fox News Channel incorrectly reported Thursday that the law's

Rachel Del Guidici, 18, of Shreve, Ohio, and others, demonstrate against President Barack Obama's health care law outside the Supreme Court in Washington, Thursday, June 28, 2012. Saving its biggest case for last, the Supreme Court is expected to announce its ruling on President Barack Obama's health care law.

Dr. Niraj Desai (center) and others prepare a kidney for a recipient during a kidney transplant at Johns Hopkins Hospital. The US Supreme Court upheld President Barack Obama's healthcare law.

Dr. Niraj Desai (center) and others prepare a kidney for a recipient during a kidney transplant at Johns Hopkins Hospital. The US Supreme Court upheld President Barack Obama's healthcare law.

Photo: BRENDAN SMIALOWSKI / AFP/Getty Images

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(FILES)The Justices of the US Supreme Court sit for their official photograph in this October 8, 2010 file photo at the Supreme Court in Washington, DC. The US Supreme Court struck down most of Arizona's controversial new immigration law on June 25, 2012, but let stand a key provision allowing officers to do spot checks of people's identity papers. The Arizona law has aroused intense controversy because of a particular provision, 2(B), that requires police to stop and demand proof of citizenship of anyone they suspect of being illegal, even without probable cause. Front row (L-R): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. Back Row (L-R): Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan. AFP PHOTO / TIM SLOAN/FILESTIM SLOAN/AFP/GettyImages less

(FILES)The Justices of the US Supreme Court sit for their official photograph in this October 8, 2010 file photo at the Supreme Court in Washington, DC. The US Supreme Court struck down most of Arizona's ... more

Photo: Tim Sloan, AFP/Getty Images

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Marlys Cox sits for a photograph in her home, Saturday, June 23, 2012, in St. Petersburg, Florida. Cox is in the Affordable Care Act's Pre-existing Condition Insurance Plan (PCIP), a temporary program which extends coverage to more than 67,000 people who can't get private health coverage because of ailments like cancer, diabetes, high blood pressure and asthma. Cox was elated by the high court's decison to uphold the ACA. (Brian Blanco/MCT) less

Marlys Cox sits for a photograph in her home, Saturday, June 23, 2012, in St. Petersburg, Florida. Cox is in the Affordable Care Act's Pre-existing Condition Insurance Plan (PCIP), a temporary program which ... more

Photo: Brian Blanco, McClatchy-Tribune News Service

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WASHINGTON, DC - JUNE 28: Senate Majority Leader Harry Reid (D-NV)(C), is flanked by Sen. Dick Durbin (D-IL)(L), and Sen. Chuck Schumer (D-NY)(R), while speaking to the media about today's Supreme Court decision to uphold the Affordable Care Act, on June 28, 2012 in Washington, DC. The high court ruled 5-4 in favor of President Obam's Affordable Care Act. (Photo by Mark Wilson/Getty Images) less

WASHINGTON, DC - JUNE 28: Tea Party activist William Temple, protests in front of he U.S. Supreme Court, on June 28, 2012 in Washington, DC. Today the high court is expected to rule on the constitutionality of the sweeping health care law championed by President Barack Obama. (Photo by Mark Wilson/Getty Images) less

WASHINGTON, DC - JUNE 28: Tea Party activist William Temple, protests in front of he U.S. Supreme Court, on June 28, 2012 in Washington, DC. Today the high court is expected to rule on the constitutionality of ... more

Photo: Mark Wilson, Getty Images

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WASHINGTON, DC - JUNE 28: Protestors argue about the Affordable Healthcare Act outside the U.S. Supreme Court on June 28, 2012 in Washington, DC. The Court found the law to be constitutional and did not strike down any part of it. (Photo by Kris Connor/Getty Images) *** BESTPIX *** less

WASHINGTON, DC - JUNE 28: Protestors argue about the Affordable Healthcare Act outside the U.S. Supreme Court on June 28, 2012 in Washington, DC. The Court found the law to be constitutional and did not strike ... more

Photo: Kris Connor, Getty Images

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WASHINGTON, DC - JUNE 28: Susan Clark argues with a another protester about the Affordable Healthcare Act outside the U.S. Supreme Court on June 28, 2012 in Washington, DC. The Court found the law to be constitutional and did not strike down any part of it. (Photo by Kris Connor/Getty Images) less

WASHINGTON, DC - JUNE 28: Susan Clark argues with a another protester about the Affordable Healthcare Act outside the U.S. Supreme Court on June 28, 2012 in Washington, DC. The Court found the law to be ... more

Photo: Kris Connor, Getty Images

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Kathryn Bailey, of Chicago, cheers as she holds a sign during a rally at Daley Plaza in Chicago on Thursday, June 28, 2012. In a dramatic victory for President Barack Obama, the Supreme Court upheld the 2010 health care law Thursday, preserving Obama's landmark legislative achievement. (AP Photo/ Nam Y. Huh) less

Kathryn Bailey, of Chicago, cheers as she holds a sign during a rally at Daley Plaza in Chicago on Thursday, June 28, 2012. In a dramatic victory for President Barack Obama, the Supreme Court upheld the 2010 ... more

Photo: Nam Y. Huh, Associated Press

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A protester against the US Supreme Court ruling upholding the constitutionality of the Affordable Healthcare Act, US President Barack Obama's signature healthcare legislation, outside the Supreme Court in Washington, DC, June 28, 2012. AFP PHOTO / Saul LOEBSAUL LOEB/AFP/GettyImages less

A protester against the US Supreme Court ruling upholding the constitutionality of the Affordable Healthcare Act, US President Barack Obama's signature healthcare legislation, outside the Supreme Court in ... more

Photo: Saul Loeb, AFP/Getty Images

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WASHINGTON, DC - JUNE 28: Protestors argue about the Affordable Healthcare Act outside the U.S. Supreme Court on June 28, 2012 in Washington, DC. The Court found the law to be constitutional and did not strike down any part of it. (Photo by Kris Connor/Getty Images) less

WASHINGTON, DC - JUNE 28: Protestors argue about the Affordable Healthcare Act outside the U.S. Supreme Court on June 28, 2012 in Washington, DC. The Court found the law to be constitutional and did not strike ... more

Photo: Kris Connor, Getty Images

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Ruth Foster of East Greenbush, N.Y., cuts a cake during rally supporting President Barack Obama's health care overhaul which was upheld by the U.S. Supreme Court on Thursday, June 28, 2012, at the Capitol in Albany, N.Y. State health officials are moving forward with plans to establish an insurance exchange intended to extend coverage to some 2.7 million New Yorkers without it. (AP Photo/Mike Groll) less

Ruth Foster of East Greenbush, N.Y., cuts a cake during rally supporting President Barack Obama's health care overhaul which was upheld by the U.S. Supreme Court on Thursday, June 28, 2012, at the Capitol in ... more

Photo: Mike Groll, Associated Press

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Supporters of President Barack Obama's health care law celebrate outside the Supreme Court in Washington, Thursday, June 28, 2012, after the court's ruling was announced. AP Photo/David Goldman)

Supporters of President Barack Obama's health care law celebrate outside the Supreme Court in Washington, Thursday, June 28, 2012, after the court's ruling was announced. AP Photo/David Goldman)

Photo: David Goldman, Associated Press

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The Supreme Court is reflected in the sunglasses of Susan Clark, of Washington, as she demonstrates against President Barack Obama's health care law while awaiting the court's ruling, Thursday, June 28, 2012, in Washington. (AP Photo/David Goldman) less

The Supreme Court is reflected in the sunglasses of Susan Clark, of Washington, as she demonstrates against President Barack Obama's health care law while awaiting the court's ruling, Thursday, June 28, 2012, ... more

Photo: David Goldman, Associated Press

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Through a basket filled with medication, pharmacist Patty Gresko, at Friendship Medical Clinic in Conway, South Carolina, Thursday, June 28, 2012 says there will always be a need for the clinic whether the money comes from charitable donations or the government. Gresko was quoted shortly after the U.S. Supreme Court ruling to uphold the Patient Protection and Affordable Care Act. (Janet Blackmon Morgan/Myrtle Beach Sun-News/MCT) less

Through a basket filled with medication, pharmacist Patty Gresko, at Friendship Medical Clinic in Conway, South Carolina, Thursday, June 28, 2012 says there will always be a need for the clinic whether the ... more

Photo: Janet Blackmon Morgan, McClatchy-Tribune News Service

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John Roberts an unlikely champion of health law

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Nonpunitive tax

Yet Roberts, giving the law "the full measure of deference owed to federal statutes," said it could be read as imposing a nonpunitive tax on those who refused to buy insurance - the same taxing power that Congress exercises to fund any federal program, from armaments to Social Security.

"It is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income but choose to go without health insurance," Roberts wrote.

The individual insurance mandate was a cornerstone of the law. Its purpose is to offset insurers' costs in covering all applicants, including those with pre-existing conditions, a requirement also scheduled to take effect in 2014. Without the mandate - inaugurated in Massachusetts under Gov. Mitt Romney in 2006 - policyholders would be disproportionately old and infirm, and rates would soar.

Conservatives, joined by Romney as the Republican presidential candidate, assailed the mandate as an unprecedented federal intrusion. At oral arguments in April, they seemed to have support from a majority that included Roberts, whose court has issued landmark conservative rulings on campaign financing, race-based school admissions and abortion.

Analyzing Roberts

Still, it was Roberts, commentators recalled, who promised at his 2005 confirmation hearing to strive for "modesty and humility" as chief justice.

"I think he is concerned about being the leader of the court, concerned about legitimacy," said Carl Tobias, a University of Richmond law professor.

"With this ruling, Roberts avoided a certain cascade of criticism for judicial activism," said Adam Winkler, who teaches law at UCLA. "No Supreme Court has struck down a president's signature legislation in 75 years."

The last time that happened, he noted, was when President Franklin Roosevelt's New Deal laws on minimum wages and industrial regulation were overturned by a conservative court - rulings that ended when Justice Owen Roberts, no relation to the current chief justice, switched votes shortly after Roosevelt proposed legislation to enlarge the court.

The law the court upheld Thursday was designed to extend coverage to 32 million of the 50 million uninsured Americans. The chief mechanisms, due to take effect in two years, are state-regulated insurance exchanges, which allow customers to compare prices and receive federal subsidies, and an extension of Medicaid, known as Medi-Cal in California, to another 17 million low-income people.

Medicaid provision

The court limited the Medicaid expansion, however, saying the federal government - which is paying nearly the entire cost - may not strip current Medicaid funds from states that refuse to expand their programs.

The federal government usually can attach conditions to its aid to states, but Roberts, writing for a 7-2 majority on the issue, said the consequences of a Medicaid penalty would be so severe - up to 20 percent of a typical state's budget - that it would reach an unconstitutional level of coercion. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

The individual insurance mandate was drafted as a penalty, not a tax, they argued, and the law is an unconstitutional intrusion on Americans' freedom of choice - a precedent to "extend federal power to virtually all human activity."

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